I have long ago moved on from this issue onto others, particularly the rebuilding of New Orleans. It is easy to see, however, that Kip and Young are both cherry-picking history and precedent.

Many nullification advocates make an error, in my opinion, in arguing for the jury's "right" to nullify. It is not a right; it is a prerogative. And it is a prerogative protected by the law.

The Defendant has a right to a jury that possesses this prerogative. This puts the "rights" onto the party that possesses rights in a criminal trial — the Defendant (the government has powers, not rights). It also better explains the role of the jury.

The tired "rights/powers" dichotomy that Kip beats to death in post after post should be wholly retired, as it 1) adds nothing to understanding jury nullification, and 2) generates huge amounts of heat without a single ray of light.

The "jury rights" argument is similar to the argument that marijuana is "harmless." That argument held the marijuana legalization folks back for decades, because it was so easy to refute. It was only when the focus shifted to marijuana being less harmful than alcohol, tobacco, or even fatty foods, that the marijuana legalization folks started getting taken seriously.

Let's recognize jury nullification for what it is: a lawful prerogative entrusted to the discretion of the jury. Can it be abused? Of course. Can judicial, prosecutorial, or police discretion be abused? Of course.

Libertarian types, not to mention the fringoids who have glommed onto this topic, tend to seek magic bullets. There are none to be found. However, JN is a lawfully protected prerogative, which juries, in their discretion, can exercise. To imagine that the Founders intended to jettison that prerogative requires such selective reading of history that the mind boggles.

The Founders did not imagine that future judges would be perfect and impartial, or that legislatures would not usurp powers that the people did not intend to cede. They understood that juries were one means by which government could be held in check — one more "check and balance," if you will.

What a pity we can't debate this in person. However, the terms "fish" and "barrel" come too easily to mind.

Clay S. Conrad
Author, "Jury Nullification: The Evolution of a Doctrine."

But two wrongs do not make a right"

So, you'll admit that there is some higher power (be it natural law, morality, ethics, etc.) to which one ought appeal in these matters.

The conclusion that, on its face, jury nullification is a "wrong", seems not to follow from that conclusion.